My child is autistic and is about to turn 18. Her doctor told me that I better look into a guardianship because I will not have any authority to control health care decisions or financial decisions once she turns 18. Is this true?
I must receive at least five phone calls a month from parents of disabled children asking this same question. I have been surprised by how many parents do not realize that, once their child turns 18 (and this applies to parents whose children are not disabled), they are no longer the legal guardian and that the child has the right to make their own decisions. Once a child turns 18 and is considered an adult, they are presumed competent until they are legally declared to be incompetent. They also have the right to make their own decisions about special education services (including the right to give up those services). It does not matter that he or she may lack the ability to understand what it is they are doing.
So what are the legal options available to a parent with a disabled child?
It is definitely most preferable to have the least restrictive alternative in place. However, this will depend on the child’s disability and whether he or she has the ability to understand and make informed choices. The least restrictive alternative is to have a joint account with your child so that you have access to their funds and can help them with paying their bills. You can also look into being their representative payee if your child receives social security benefits. However, with both of these options, your child still retains the ability to make their own decisions.
For children or are mildly or moderately impaired, but are able to make informed decisions and appreciate naming someone to handle their financial affairs or health care decisions, a Durable Power of Attorney (DPOA), Living Will, and Health Care Surrogate Designation may be an option.
The DPOA is a document that allows the adult child to appoint someone (presumably their parents) as their agent to make financial decisions on their behalf (and this includes handling the banking affairs, dealing with real property, entering into contracts, etc.).
The Health Care Surrogate Designation allows the adult child to appoint someone who can make health care decisions on their behalf, including issues regarding life-sustaining treatment. The downside to these documents is that the adult child can revoke these documents at any time.
In some situations, as in the case of severe cognitive impairment or mental impairments, the only alternative may be to have a guardian or guardian advocate appointed.
A guardianship occurs when the Court is asked to declare someone legally incompetent. The person’s rights (to marry, to contract, to decide where to live, to be employed, etc.) are taken away and an individual is appointed as the legal guardian over the person.
The legal guardian then has the right to determine where the Ward (disabled person) will live, their health care, etc. In many situations, especially where the Guardian wants to spend the Ward’s money, the Guardian must seek permission from the Court. This can be a very time-intensive and expensive process and requires the hiring of an attorney.
For developmentally disabled individuals (specifically, those suffering from retardation, cerebral palsy, autism, spina bifida or Prader-Willi syndrome), the court can appoint a guardian advocate. This is less costly than a formal guardianship, the individual does not have to be determined “incapacitated” and an examining committee does not have to be appointed. Additionally, if there is no property involved (other than social security or other government payee programs), the guardian advocacy process does not require the hiring of an attorney whereas a formal guardianship does require the guardian to be represented by an attorney. For more information on the guardian advocacy program, and how to file on your own, please see the Ninth Judicial Circuit website at http://www.ninthcircuit.org/about/divisions/probate/downloads/GuardianAdvocate/GAInstructions.pdf
Attorney, Laurie Ohall, is an estate planning attorney based in Brandon, Florida, serving clients throughout Tampa Bay. If you have a developmentally disabled child that is close to legal age, contact an estate planning attorney as soon as possible to determine the legal options that are best for your family.